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Sunday, December 13, 2009

In a landmark case, Justice S.N. Dhingra of the Delhi High Court has expressed concerns regarding the evasive techniques adopted by many litigants to invoke the original jurisdiction of High Courts. This negates jurisdiction to the courts that actually have to try the case. The court also suggested to the government to bring an amendment in the Copyright Act to remove the discussed anomaly so that the big companies would not take advantage of it. However, experts believe that the current Copyright law of India may pose a contradiction against the observations made vis-à-vis jurisdictional aspects discussed in the case.

Justice S.N. Dhingra of the Delhi High Court has asked Microsoft Corporation to shell out Rs.800,000 ($16,000) for choosing to fight four copyright violation cases in the Indian capital even though they originated in other cities. Microsoft said it was fighting the cases in Delhi as it has its office in the national capital. But the court told Microsoft if it wanted the cases to be heard here, it would have to deposit a sum of Rs.200,000 per case - as a cost security.

This case has raised a very important question of law and it would be interesting to know the further development of the same on Jan 18 next year. This is so because some of the observations of the court are going against the express and settled position of the copyright law of India.

According to Praveen Dalal, Managing Partner of Perry4Law and the leading authority on “jurisdictional issues” of copyright law in India, “Although the intention of the court is benign and justice oriented yet whether it is fully correct or not is still debatable. This is because the relevant section of the Indian Copyright Act, 1957 has received a different and contrary interpretation not only by the Delhi High Court itself but also by the Supreme Court of India. However, every case depends upon its own facts and circumstances and the facts of the present case only would decide the fate of this case, says Dalal”.

The jurisdictional issue of copyright violation is a very crucial issue and it needs not only finality but also uniformity. The present observations of the court have raised few interesting and novel questions and they would go a long way in shaping the jurisdictional issues of copyright law in India.

The Anti Terrorist Squad (ATS) recently arrested five people from a cell phone repair shop for implanting fake International Mobile Equipment Identity (IMEI) numbers in cell phones. It is a general perception that the 15-digit IMEI number can be used to identify a handset on an operator’s network, allowing individual calls to be traced to the phone it came from.

Does this assertion has any significant national security importance? Having knowledge about the IMEI number has many advantages for law enforcement and telecom service providers. The IMEI number is used by the GSM network to identify valid devices and therefore can be used to stop a stolen phone from accessing the network. If a mobile phone is stolen, the owner can call his or her network provider and instruct them to "ban" the phone using its IMEI number. This renders the phone useless, whether or not the phone's SIM is changed.

However, the bigger question is whether absence of an IMEI number per se is as offensive as to attract the “national security clause” and to brand a holder of such mobile a “terrorist”?

According to Praveen Dalal, the leading Techno-Legal Expert of India and Managing Partner of Perry4Law we need to have additional information besides IMEI for national security purposes. The IMEI is only used to identify the device, and has no permanent or semi-permanent relation to the subscriber, says Dalal. However, many network and security features are enabled by knowing the current device being used by a subscriber, suggests Dalal.

Although a good start has been made by the Indian government yet it has to cover a long road ahead. There is an urgent need to impart good techno-legal training to law enforcement and intelligence agencies so that national security can be protected as much as possible. The government must also train law enforcement officers in techno-legal fields so that they may effectively deal with the technology related crimes in India.

Intelligence officials in India are not impressed with the FBI’s inputs regarding Headley’s case. India wanted voice samples of Headley and associate Tahawwur Rana talking to their handlers in Pakistan. But the FBI told them they didn’t have any such intercepts. “We had a lot more information and evidence than they (FBI). Headley told them about the places he visited; we’d already tracked his movements and had evidence to back them,” an intelligence official said.

This also shows the crucial requirements of establishing and strengthening Indian intelligence agencies'. India should primarily rely upon indigenously developed capabilities rather than upon foreign sources.